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24 January 2013

The Legality of Parodies under Indian Law (Part I)

Copyright Issues

In the case of a parody, it is not just copyright law which could come into play but also tort law and general criminal law, including the law of defamation, depending on content of the parody. The law relating to non-copyright aspects of parodies is relatively clear though [update: or so I once thought!], and follows the principles laid down in standard content laws.

As far is copyright law is concerned though, parodies exist in a grey area, and the determination of whether any particular parody is legal or not could be extremely subjective. Parodies are neither explicitly allowed nor disallowed under the Copyright Act. In the case of Civic Chandran, [1996 PTR 142], the Kerala High Court had held that a ‘counter drama’ of a play — which, from the decision, appears to have been in the nature of a parody — did not infringe the copyright in the play. However, there is no body of case law in India allowing parodies across the board. Consequently, a blanket statement to the effect that ‘Parody is permissible under Indian copyright law’ is inaccurate. That said, as indicated earlier, each parody would have to be considered separately, and not all parodies would be considered to be in violation of copyright.

Broadly, parodies may be categorised into those which reproduce a substantial part of the 'original work' which they parody, and those which do not. (The term 'original work' has been used to speak of the work which has been parodied here.) Parodies reproducing substantial portions of the original work may be permissible to the limited extent that they are criticism of the original work they parody with reference to Section 52(1)(a) of the Copyright Act, which Section allows for persons to engage in fair dealing with a work for certain specified purposes (like criticism and review) without the permission of the rights owner.

Criticism of the original work, however, is a term extremely limited in its scope, and if a parody reproducing a substantial part of the original work were, for example, to simply mock the original work without criticising it, it is possible that it would not fall within the scope of the exception to copyright infringement described in Section 52(1)(a) of the Copyright Act. That said, if the parody was a completely new, non-derivative work (not reproducing a substantial part of the original work), it would be possible to argue that it would not require copyright licence(s) from the owners of the rights in the original work — this proposition is buttressed by the fact that in the seminal Indian case of RG Anand v. M/s Deluxe Films, 1978, the Supreme Court had stated that: ‘Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.’

Pertinently though, in the case of parodies of cinematograph films and sound recordings, there are a number of different works involved, and an even larger number of rights. If one were to consider a song, there being no composite copyright for a song, a number of different works — the lyrics (a literary work), the music (a musical work), and possibly, the sound recording — would have to be considered. Similarly, in the case of a cinematograph film, apart from the film itself, the underlying works such as the script (a literary work) and the music (a musical work) would have to be considered. Each of these works would have a separate set of rights associated with them.

Determining the legality of a parody would require the rights in not only the resulting work (such as the film or sound recording) but also the separate rights in the underlying works (such as the lyrics and music) to be taken into account. In this regard, it is pertinent to note that Section 13(4) of the Act and a proviso to Section 17 of the Act indicate that having been included in a sound recording or film would not affect the separate copyright subsisting in underlying works (such as music or lyrics). In the case of broadcasts and performances, a supporting provision is seen in Section 39A(2), contained in Chapter VIII of the Copyright Act, which reads as follows: ‘The broadcast reproduction right or the performer’s right shall not affect the separate copyright in any work in respect of which, the broadcast or the performance, as the case may be, is made.’

Leaving aside Chapter VIII, in the case of the sound recording of a song, for example, assuming that the resulting parody as whole were to fall within the scope of ‘criticism’ contemplated by Section 52(1)(a) by virtue of its lyrics, it may not be necessary to obtain separate permission from the owner of the sound recording (as the sound recording may be permissible criticism) or the lyrics (if the lyrics of the parody were entirely ‘new’ and not adapted from the original lyrics). However, this possible non-requirement of a licence may not extend to the music, and it could be necessary to obtain a separate licence from the owner of the music, if the music were substantially reproduced in the parody. This possible requirement of a licence for the music, in these circumstances, is supported by the 'separate copyright in underlying works' as described in the preceding paragraph, and the fact that Section 14 of the Copyright Act states that the reproduction of the whole or any substantial part of a work is the exclusive right of the copyright owner, while Section 52(1)(a) of the Copyright Act only allows for fair dealing.

Thus, in India, the legality of parodies is determined with reference to Fair Dealing (as per Section 52(1)(a) of the Copyright Act), and the Substantiality Test (derived from Section 14 of the Copyright Act, allowing insubstantial parts of works to be used without the consent of their owners), as well as — in the case of broadcasts and performances — Chapter VIII of the Copyright Act, and, in particular, Sections 39 and 39A of the Act which deal with the Broadcast Reproduction Right and Performer's Right (and, which, inter alia, permit fair dealing with broadcasts and performances).

Unfortunately, the Indian Copyright Act is less than crystal clear about what would be considered to be ‘fair’ with regard to permissible Fair Dealing contemplated by Section 52(1)(a) of its text. There has been a tendency in India to determine what would be considered to be fair with reference to the four factors laid down in Section 107 of Title 17 of the United States Code and, possibly, Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) which contains reference to principles similar to those in Title 17.

That said, Indian courts have not always embraced foreign law although Section 107 of Title 17 has been referred to oftenenough, with reference to case law under it, especially in recent years. However, it is worth bearing in mind that foreign law only has persuasive value in India, and cannot create 'rights' alien to Indian statute. For example, in the Madras High Court case of Blackwood and Sons Ltd. and Ors. v. AN Parasuraman and Ors., 1958, which was not related to parodies, US law was held not to apply, and the Court stated, in relation to Fair Dealing:

I agree that if there were such a motive it would render the dealing "unfair" but I am unable to agree that if the works were not intended to compete, this would set at rest all questions concerning "fair dealing". Here again it appears to me that one has to have regard to the substantiality of the quantity and the quality of the matter reproduced. If there were an abstraction of something of value to an appreciable degree it appears to me to be immaterial whether the copying is or is not likely to compete with the copyright work. Most probably it will and I have already expressed myself on this topic, but even if it did riot, I consider that such an amount of copying would negative "fairness".

If substantial and vital parts of the works are reproduced the intention to appropriate to the infringer the labour of others for his own profit is made out and there need not be proof of any independent oblique motive. [Extracted in relevant part.]

In light of this, it may be possible to infer that commercial exploitation of a work (such as a parody) — which work could otherwise be considered to be permissible in terms of Section 52(1)(a) of the Copyright Act — may not be considered to be Fair Dealing at all, although, of course, making a blanket statement that it is not fair dealing would be jumping the gun.

Further, it is important to bear in mind that the criticism permissible under Section 52 of the Copyright Act is not only criticism of the original work being parodied but also of any other work. If the criticism were of 'any other work' similar principles as those which apply to criticism of what has been referred to herein as the original work would come into play although they would not apply in an identical manner.

Finally, copyright aside, there is also the issue of moral rights (technically, ‘special rights’ as contemplated by Section 57 of the Copyright Act) which comes into play. If the content of a parody, inter alia, modifies, mutilates or distorts the work of an author in a manner which is prejudicial to his honour or reputation, the author or his legal representatives may be able to successfully initiate legal proceedings (to restrain or claim damages in respect of the ‘distortion, mutilation, modification or other act in relation to the work’). This right, which is generally referred to as the right to integrity exists independently of copyright, and may be violated even after the copyright in the relevant work has been assigned by the author to another person.

In conclusion, conducting the exercise of determining whether or not a parody is legal with respect to copyright law in India could be considered to be stepping into a legal minefield.

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